State ex rel. Chrysler Corp. v. Industrial Com'n of Ohio

Decision Date25 February 1998
Docket NumberNo. 95-561,95-561
Citation689 N.E.2d 951,81 Ohio St.3d 158
PartiesThe STATE ex rel. CHRYSLER CORPORATION, Appellee, v. INDUSTRIAL COMMISSION OF OHIO; Garrett, Appellant.
CourtOhio Supreme Court

Eastman & Smith, Thomas J. Gibney and Ricardo A. King, Toledo, for appellee.

Dorothy McCrory & Assoc., Toledo, Paula Hicks-Hudson, Ada, and Christopher S. Clark, Toledo, for appellant.


This cause presents five issues for our review: (1) Is Dr. Kalb's opinion "some evidence" for the award of TTD and medical benefits? (2) Was Garrett required to prove that the aggravation of his arthritic condition caused his disability and need for medical benefits? (3) Did the commission's confirmation of the DHO's May 17, 1988 finding that Garrett's condition was permanent preclude the commission's continuation of TTD? (4) Did the commission sufficiently explain its reasoning? and (5) Assuming reversal of the writ vacating Garrett's award, is Chrysler entitled to reimbursement from the Surplus Fund under former R.C. 4123.515 due to the commission's failure to appeal? For the reasons that follow, we hold that (1) Dr. Kalb's reports are some evidence to support the commission's decision; (2) Garrett was required to and did provide evidence to establish a causal connection between his injury and disability; (3) the commission complied with State ex rel. Eaton Corp. v. Lancaster (1988), 40 Ohio St.3d 404, 534 N.E.2d 46, such that the commission's permanency determination did not preclude subsequent TTD; (4) the commission's explanation was adequate under State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 6 OBR 531, 453 N.E.2d 721; and (5) Chrysler is not entitled to reimbursement from the Surplus Fund. Accordingly, we reverse.

Some Evidence and Causation

To receive workers' compensation for conditions developing after an industrial injury, the claimant must show "not only that his injury arose out of and in the course of his employment, but that a direct and proximate causal relationship existed between his accidental injury and his harm or disability." Fox v. Indus. Comm. (1955), 162 Ohio St. 569, 576, 55 O.O. 472, 475, 125 N.E.2d 1, 5.

The commission relied on the reports of Dr. Kalb and Drs. Purewal and Rosenblatt, both commission specialists, to grant Garrett TTD and authorize surgery. Neither the Purewal nor Rosenblatt reports, however, recognized the aggravation of Garrett's arthritic condition as allowed by the commission. Thus, the court of appeals correctly concluded that neither report is evidence tying Garrett's injury to his arthritic disability.

In April 1988, Dr. Kalb reported:

"In summary, it is my opinion [Garrett's] pre-existing patellofemoral arthritis condition was aggravated by his work-related injury * * *. It is also my opinion at the present time that he has reached maximum medical improvement unless further treatment is carried out. This treatment would consist of patellectomy or knee arthroplasty and would be expected to improve his condition and function and possibly allow return to work. His work restrictions after such a procedure, however[,] would involve limitations to avoid frequent knee flexion beyond 90 degrees. This would include restrictions on frequent squatting, stair climbing and ladder climbing activities.

"With his age, muscle strength, and weight, knee arthroplasty would be expected to provide a more favorable lasting result than patellectomy. In direct answer to your question regarding his initial complaints, his symptoms were present on both sides subsequent to his injury. His impairment would be based upon his limitation of knee ROM according to the AMA guidelines for impairment."

In January 1991, Dr. Kalb recommended replacement of Garrett's knee and offered this report, apparently to redress inconsistency in two depositions he had provided in February 1990 for the common pleas court proceedings:

"As I mentioned in my deposition, it is unusual that an injury such as that sustained by Mr. Garrett would be expected to produce abrupt, continuous and progressive symptoms of pain within the knee. My opinion regarding the accident resulting in substantial aggravation to his knee condition is based as I mentioned on Mr. Garrett's history of not having had any problems with his knees of any sort, nor any requirement for medical treatment for his knees prior to the accident * * *.

" * * *

"In summary, as I mentioned in my deposition, one would not expect an injury from the side to aggravate or contribute to his patellofemoral arthritic knee condition. However, one must not ignore the patient's history of having no pain prior to the accident with his knees and having had no medical treatment prior to the accident with his knees. Based upon his history * * * of having [the] onset of symptoms which have become progressive subsequent to the accident[,] [it] is logical to conclude that for whatever reason, his pain did develop immediately subsequent to the accident and therefore it is logical to conclude that the accident certainly played a role in his symptoms even though his radiographic and arthroscopic findings would not likely be expected to be substantially different than prior to the accident. With osteoarthritis or chondromalacia patella, patients are known in many cases to have rather sudden onset of pain which is continuous following a relatively minor traumatic event.

"In review of prior radiographs on patients such as this, it is clear that the degenerative process had been going on for some time prior to their becoming symptomatic. It is believed that these conditions may become rather abruptly painful following minor trauma or in some cases no trauma, due to the final thin layer of articulate cartilage being finally worn off exposing direct contact with the bone beneath."

Dr. Kalb's reports represent that Garrett's injury provoked his arthritic disability; however, Chrysler complains that Dr. Kalb testified differently during his two depositions. 2 According to Chrysler and the court of appeals, Dr. Kalb's deposition testimony conceded his uncertainty about the cause of Garrett's disability, making his opinion too equivocal to constitute some evidence for the commission's decision under State ex rel. Owens-Corning Fiberglas Corp. v. Indus. Comm. (1994), 70 Ohio St.3d 263, 265, 638 N.E.2d 565, 567 (commission cannot rely on a repudiated medical opinion or one that is "merely equivocal").

Chrysler relies on this cross-examination from Dr. Kalb's first deposition:

"Q. Let me ask you to assume just hypothetically that the events of December 21st, 1985 did aggravate a pre-exsting osteoarthritic condition in Mr. Garrett's knees. Is there any way you can say to a reasonable degree of medical probability that Mr. Garrett's knees would not be in the same condition that they are in today, even if the events of December 21st, hadn't happened? In other words, can you say that he would not have gotten to the point that he is today even if the events of December 21st, 1985 hadn't happened?

"A. No, I cannot say that.

"Q. And based on the pre-existing congential problems which were significant in Mr. Garrett's knees, it would not be unfair to assume that he would be in the same condition today that he's in even if the events of December 21st hadn't happened?

"A. That is correct.

" * * *

"Q. So what we've got is somebody whose having degenerative problems in his knees and from a medical standpoint there's no way that you can say that his condition is any worse today than it would otherwise have been even if what happened on December 21st hadn't happened.

"A. That is correct."

Chrysler also relies on this cross-examination from Dr. Kalb's deposition taken two weeks later:

"Q. So you would agree, would you not, that based on the conditions that existed in Mr. Garrett's knees prior to the events of December 21st, 1985 you would have expected to see just over the normal course of time of degeneration an increase in symptoms and discomfort in his knees?

"A. That is correct.

"Q. There is no way that you can say today, Doctor, that Mr. Garrett's condition is any worse than it would have been even if the accident hadn't happened?

"A. That is correct."

In response, Garrett insists that Dr. Kalb rehabilitated his testimony during the second deposition and with his January 1991 medical report. Garrett maintains that (1) Dr. Kalb repeatedly attributed Garrett's disability entirely to the injury-induced aggravation of his arthritis because Garrett had not experienced subjective symptoms of the condition before the accident, and (2) Dr. Kalb's inconsistency as to the cause of Garrett's problems was a mistake he later clarified and corrected. Clarification and correction, Garrett argues, resolves equivocation and sustains the evidentiary value of expert opinion. We agree.

The rule that an equivocal medical opinion is "not evidence" on which the commission can rely emerged from State ex rel. Jennings v. Indus. Comm. (1982), 1 Ohio St.3d 101, 1 OBR 135, 438 N.E.2d 420; State ex rel. Paragon v. Indus. Comm. (1983), 5 Ohio St.3d 72, 5 OBR 127, 448 N.E.2d 1372; and State ex rel. Walters v. Indus. Comm. (1985), 20 Ohio St.3d 71, 20 OBR 402, 486 N.E.2d 94. After reviewing this precedent, State ex rel. Eberhardt v. Flxible Corp. (1994), 70 Ohio St.3d 649, 657, 640 N.E.2d 815, 821-822, explained what constitutes equivocation by a medical expert:

"[E]quivocation occurs when a doctor repudiates an earlier opinion, renders contradictory or uncertain opinions, or fails to clarify an ambiguous statement. Ambiguous statements, however, are considered equivocal only while they are unclarified. Paragon, supra. Thus, once clarified, such statements fall outside the boundaries of Jennings, supra, and its progeny.

"Moreover, ambiguous statements are inherently different from those that are repudiated, contradictory or...

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